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As filed with the Securities and Exchange Commission on June 26, 1996
Registration No. ________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
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ONCOGENE SCIENCE, INC.
(Exact name of registrant as specified in its charter)
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Delaware 13-3159796
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
106 Charles Lindbergh Blvd.
Uniondale, NY 11553
(Address of principal executive offices) (Zip Code)
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ONCOGENE SCIENCE, INC.
STOCK PURCHASE PLAN FOR NON-EMPLOYEE DIRECTORS
AND
ONCOGENE SCIENCE, INC.
1995 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
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ROBERT L. VAN NOSTRAND
ONCOGENE SCIENCE, INC.
106 CHARLES LINDBERGH BLVD.
UNIONDALE, NEW YORK 11553
(516) 222-0023
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copy to:
SPENCER W. FRANCK, JR., ESQUIRE
SAUL, EWING, REMICK & SAUL
3800 CENTRE SQUARE WEST
PHILADELPHIA, PENNSYLVANIA 19102
(215) 972-1955
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See next page for calculation of registration fee.
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
================================================================================================================================
Proposed Proposed
Title of Securities to Amount to be Maximum Offering Maximum Amount of Registration Fee(3)
be Registered Registered Price Per Share(3) Aggregate
Offering Price(3)
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<S> <C> <C> <C> <C>
Common Stock, Par 500,000 (1) $10.31 $5,155,000 $2,133.10
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Value $.01 Per Share 100,000 (2) $10.31 1,031,000
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600,000 $6,186,000
======= ==========
================================================================================================================================
</TABLE>
(1) Represents shares issuable to employees pursuant to the 1995 Employee
Stock Purchase Plan.
(2) Represents shares issuable to certain directors pursuant to the Stock
Purchase Plan for Non-Employee Directors.
(3) The registration fee with respect to these shares has been computed in
accordance with paragraphs (c) and (h) of Rule 457, based upon the
average of the reported high and low sale prices of shares of the
Common Stock on June 21, 1996.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.(1)
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.(1)
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The documents listed in clauses (a), (b) and (c) below are
incorporated herein by this reference thereto, and all documents subsequently
filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by this reference in this registration statement and to be a part
hereof from the date of filing of such documents:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended September 30, 1995.
(b) The Registrant's Quarterly Reports on Form 10-Q for the quarters
ended December 30, 1995 and March 31, 1996, and the Registrant's Current Reports
on Form 8-K dated April 1, 1996, which was filed on April 26, 1996 and amended
by Form 8-K/A filed on May 10, 1996.
(c) The description of the Common Stock contained in the registration
statement filed by the Registrant to register such securities under Section 12
of the Securities Exchange Act of 1934, including any amendment or report filed
for the purpose of updating such description.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
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(1) The information called for by Part I of Form S-8 is currently included
in the description of the Registrant's Stock Purchase Plan for
Non-Employee Directors (the "Director Plan") and 1995 Employee Stock
Purchase Plan (the "Employee Plan") (the Director Plan and Employee
Plan are referred to collectively as the "Plans") delivered to eligible
persons under the Plans. Pursuant to the Note to Part I of Form S-8,
this information is not being filed with or included in this Form S-8.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of Delaware
empowers a corporation to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he or she is or was a director, officer, employee or
agent of the corporation or another enterprise if serving at the request of the
corporation. Depending on the character of the proceeding, a corporation may
indemnify against expenses (including attorney's fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred in connection with
such action, suit or proceeding if the person indemnified acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the
best interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was unlawful.
In the case of an action by or in the right of the corporation, no
indemnification may be made in respect to any claim, issue or matter as to which
such person shall have been adjudged to be liable to the corporation unless and
only to the extent that the Court of Chancery or the court in which such action
or suit was brought shall determine that despite the adjudication of liability,
but in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses that the court shall deem
proper. Section 145 further provides that to the extent a director or officer of
a corporation has been successful in the defense of any action, suit or
proceeding referred to above, or in defense of any claim, issue or matter
therein, he or she shall be indemnified against expenses (including attorney's
fees) actually and reasonably incurred by him or her in connection therewith.
The Registrant's Certificate of Incorporation provides that
the Registrant shall, to the fullest extent permitted by law, indemnify all
directors, officers, employees and agents of the Company. The Certificate of
Incorporation also contains a provision eliminating the liability of directors
of the Registrant to the Registrant or its stockholders for monetary damages,
except under certain circumstances. The Certificate of Incorporation also
permits the Registrant to maintain insurance to protect itself and any director,
officer, employee or agent against any liability with respect to which the
Corporation would have the power to indemnify such persons under the Delaware
General Corporation Law. The Registrant maintains an insurance policy insuring
its directors and officers against certain liabilities.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following is a list of exhibits filed as part of the
Registration Statement:
5 Opinion of Saul, Ewing, Remick & Saul
23.1 Consent of KPMG Peat Marwick, LLP, independent public
accountants
23.2 Consent of Saul, Ewing, Remick & Saul (contained in
Exhibit No. 5)
24 Power of Attorney (included on signature page of this
registration statement)
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ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement;
(iii) to include any material information with
respect to the plan of distribution not previously disclosed
in the Registration Statement or any material change to such
information in the Registration Statement;
(2) that, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof;
(3) to remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liability (other than payment by the Registrant of
expenses incurred or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunder duly
authorized, in the City of Uniondale, State of New York, on June 25, 1996.
ONCOGENE SCIENCE, INC.
By: /s/ Gary E. Frashier
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Gary E. Frashier,
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below hereby makes, constitutes and appoints Gary E. Frashier
and Robert L. Van Nostrand, and each of them, with full power to act without the
other, his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities to sign any and all amendments to this Registration
Statement, including post-effective amendments, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite or necessary to be done in connection therewith,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them, or any substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ Gary E. Frashier Chief Executive Officer June 25, 1996
- ------------------------------ and Director
Gary E. Frashier
/s/ Steve M. Peltzman President, Chief Operating June 25, 1996
- ------------------------------ Officer and Director
Steve M. Peltzman
/s/ J. Gordon Foulkes Vice President, Chief June 25, 1996
- ------------------------------ Scientific Officer and
J. Gordon Foulkes Director
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ Robert L. Van Nostrand Vice President, Finance and June 25, 1996
- ------------------------------ Administration (Principal
Robert L. Van Nostrand Financial and Accounting
Officer)
/s/ G. Morgan Browne Director June 25, 1996
- ------------------------------
G. Morgan Browne
/s/ John H. French, II Director June 25, 1996
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John H. French, II
/s/ Edwin A. Gee, Ph.D. Director June 25, 1996
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Edwin A. Gee, Ph.D.
/s/ Walter M. Lovenberg, Ph.D. Director June 25, 1996
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Walter M. Lovenberg, Ph.D.
/s/ Walter M. Miller Director June 25, 1996
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Walter M. Miller
/s/ Gary Takata Director June 25, 1996
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Gary Takata
/s/ John P. White Director June 25, 1996
- ------------------------------
John P. White
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. EXHIBIT
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<S> <C>
5 Opinion of Saul, Ewing, Remick & Saul
23.1 Consent of KPMG Peat Marwick, LLP, independent public
accountants
23.2 Consent of Saul, Ewing, Remick & Saul (Contained in
Exhibit No. 5)
25 Power of Attorney (included in signature page of this
registration statement)
</TABLE>
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EXHIBIT 5
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[SAUL, EWING, REMICK & SAUL LETTERHEAD]
June 25, 1996
Oncogene Science, Inc.
106 Charles Lindbergh Blvd.
Uniondale, NY 11553
Gentlemen:
We refer to the Registration Statement on Form S-8 (the "Registration
Statement") of Oncogene Science, Inc., a Delaware corporation (the "Company"),
to be filed with the Securities and Exchange Commission covering the
registration under the Securities Act of 1933, as amended (the "Securities
Act"), of 600,000 shares of common stock, par value $.01 per share, of the
Company (the "Shares").
We have examined the Registration Statement, the Certificate of
Incorporation and By-laws of the Company and such records, certificates and
other documents as we have considered necessary or appropriate for the purposes
of this Opinion.
Based on the foregoing, it is our opinion that:
1. the Company is duly organized, validly existing and in good standing
under the laws of State of Delaware; and
2. the Shares to be issued in accordance with the terms described in
the Registration Statement have been duly authorized and, when issued in
accordance with the terms described in the Registration Statement, will be
validly issued, fully paid and non-assessable.
We hereby consent to use of our name in the Registration Statement as
counsel who will pass upon the legality of the Shares for the Company and as
having prepared this Opinion as an exhibit to the Registration Statement. In
giving the foregoing consent, we do not thereby admit that we are in the
category of persons whose consent is required under Section 7 of the Securities
Act or the rules and regulations of the Securities and Exchange Commission
thereunder.
Very truly yours,
SAUL, EWING, REMICK & SAUL
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EXHIBIT 23.1
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[LETTERHEAD PEAT MARWICK LLP]
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Oncogene Science, Inc.:
We consent to incorporation by reference in the registration statement dated
June 25, 1996 on Form S-8 of Oncogene Science, Inc. of our report dated
December 1, 1995, relating to the consolidated balance sheets of Oncogene
Science, Inc. and subsidiaries as of September 30, 1995 and 1994, and the
related consolidated statements of operations, stockholders' equity and cash
flows, for each of the years in the three-year period ended September 30, 1995,
which report appears in the September 30, 1995 annual report on Form 10-K of
Oncogene Science, Inc.
/s/ KPMG Peat Marwick LLP
KPMG PEAT MARWICK LLP
Jericho, New York
June 25, 1996
